Mykhailo Savva: The question of numbers is one of the most difficult, because every time we name a figure, we need to explain its meaning. For example, 28,000 is the total number of Ukrainian citizens who are currently in the register of missing persons. Among these individuals are those who, unfortunately, have already died, those who are somewhere abroad, including in the Russian Federation, but are not deprived of their liberty, and military personnel who have gone missing. Therefore, when we analyze how many civilian Ukrainians are behind bars in the occupied territory and in the Russian Federation, we are guided by the figure of 7,000. It is not precise; it is the result of an estimate. However, in our opinion, it is more or less objective.
Among these 7,000, approximately 1,600 individuals are deprived of their liberty by the occupiers, and we know them by name and surname. About half of these cases have been confirmed by the ICRC (International Committee of the Red Cross – ed.). The other half are confirmed through other means. Unfortunately, we do not know the names of the remaining individuals who are deprived of their liberty. However, we are guided by the understanding that they are alive and behind bars.
Mykhailo Savva: In fact, we must insist that all these individuals be released without exchanges, without conditions, immediately. The reality is that they are being held in captivity unlawfully. According to international humanitarian law, while the occupying power can detain a civilian or conduct an inspection, it must do so promptly. Either initiate a criminal case if there is evidence of a crime or release the individual.
Currently, we’re faced with a situation where in most cases, there are no criminal charges against these civilian Ukrainians, yet they remain incarcerated. Some have been behind bars for over two years. For instance, individuals detained in the Kyiv region, such as my neighbors in Bucha, have been in Russian detention centers and penal colonies since March 2022. Russia is blatantly violating international law.
It’s unrealistic to expect Russia to release them voluntarily. We need to exert pressure. In the strategy for the release of civilians that we presented alongside the Coordination Headquarters for the Treatment of Prisoners of War, we proposed a method to apply such pressure. We need to utilize the UN Convention against Torture. We assert that such prolonged, unlawful detention without court decisions or charges constitutes cruel treatment.
Ironically, Russia is still a signatory to this Convention, voluntarily agreeing to adhere to its norms, yet it’s blatantly disregarding them. Ukraine, as a state, has the right, which it has yet to exercise: the right to demand that Russia comply with the Convention and release civilians. If this isn’t fulfilled, the Convention mandates the next step: appealing to find a country to act as an arbitrator.
Mykhailo Savva: This isn’t exactly an intermediary role. The function of an arbitrator country is to adjudicate a dispute between warring nations and issue a binding decision. The warring nations are obligated to abide by this decision. If the arbitrator country confirms that civilians are unlawfully detained by Russia, Russia must release them.
Russia opposes any third country appointed to perform functions in this conflict. For instance, there’s a function in international humanitarian law called the Protecting Power. This role entails a third country, designated with the consent of other nations, to oversee the humane treatment of prisoners of war and civilians. However, when Ukraine suggested Switzerland, Russia rejected it, claiming bias without explanation. Essentially, Russia reserves the right to reject any country in the world.
In theory, the arbitrator country could be a nation claiming neutrality in the conflict and with diplomatic channels to both Ukraine and Russia. Turkey is a primary candidate. Alternatively, former Soviet Union member states could be considered. Despite these options, it’s highly probable that Russia will reject all proposals.
The Convention Against Torture specifies that if no agreement on an arbitrator country is reached within six months, the initiating country can appeal to the International Court of Justice.
Mykhailo Savva: We envision a specialized package of economic sanctions from our Western allies targeting Russian officials and organizations accountable for the unlawful deprivation of civilians’ liberty. This includes entities like the Federal Security Service (FSB). Why? Because, as it transpires, civilian Ukrainians are detained without court decisions based on directives from heads of regional FSB departments.
In essence, there are no judicial rulings. Instead, these FSB generals or colonels issue detention orders and extend imprisonment terms every three months. They are pivotal figures culpable in this situation. Additionally, heads of institutions within the Federal Penitentiary Service unlawfully detain Ukrainian civilians. Just consider, they bring an individual to a detention facility and dictate, «Keep him there».
On what grounds? There’s no court decree; it’s solely based on a directive from the FSB regional head. This is utter absurdity. Every Russian Federal Penitentiary Service employee must recognize that they’re executing an illicit directive. Therefore, there are individuals against whom economic sanctions can be enforced and criminal proceedings initiated. This serves as a deterrent. And it’s paramount.
When criminal proceedings are instigated for unlawful captivity, it prompts others who haven’t faced prosecution yet to reconsider: is it worth taking such risks? They’re uncertain about the duration of the Putin regime, the aftermath, and their potential pursuit and punishment. Their present state of ambiguity fuels their apprehensions.
They are uncertain about what the future holds, how they will be pursued, and what punishments they may face. Currently, they are in a state of profound ignorance. They’re unsure if Putin still holds power or if he has been apprehended. This pervasive uncertainty only amplifies their fears.
Mykhailo Savva: They detain at least 7,000 civilians, yet I’m aware of only about two hundred individuals with criminal charges against them in Russia. The vast majority are detained without facing criminal charges.
Instigating numerous lawsuits to impede the release of these individuals seems implausible. Moreover, it appears there isn’t even such an intention. As I mentioned, some have been detained for about two years or more without facing criminal charges. If they haven’t done so in this duration, it’s doubtful they will.
These individuals are detained with a purpose. Perhaps to utilize them as leverage for political pressure on Ukraine. Maybe they await negotiations to leverage this «trump card,» as they say. It’s challenging to discern Russia’s motives, as they’ve never explicitly stated them.
However, detaining these individuals without grounds enables labeling them as hostages. Hostages are seized to demand something later on.
Yet, I have reservations because hostage-taking constitutes a grave war crime. It’s improbable that the Russian regime needs additional indictments from the International Criminal Court for yet another egregious war crime of hostage-taking. However, we’re aware of individuals facing criminal charges. Why?
Because individuals without criminal charges aren’t even granted access to Russian lawyers. Lawyers occasionally attempt visits to detention centers upon learning of a Ukrainian detainee. Yet, they’re turned away, being informed that no criminal cases are involved. Once a criminal case is initiated, at least a lawyer gains entry to the detention facility. Consequently, information about the individual surfaces, establishing a communication link with them.
Mykhailo Savva: Currently, Russia has not officially formulated any demands concerning Ukrainian civilians. However, I emphasize «officially» because unofficially, the Russian Federation has a group of State Duma deputies advocating for the idea. They have even appealed to the head of the FSB to exchange Ukrainian civilians held by Russia for those convicted in Ukraine for collaborating with the occupiers.
This discussion became public in May last year when MP Kuznetsov officially proposed the idea at a press conference. Subsequently, an inter-factional deputy group was formed, actively promoting this notion, despite lacking official support.
That’s why I assert that Russia has not formulated any official demands. This lack of clarity restricts Ukraine, including its ability to prove a new war crime like hostage-taking.
Mykhailo Savva: Unfortunately, this war has brought us a lot of sorrowful experiences. Consequently, in Ukraine, we are contemplating the initiation of reforms in International Humanitarian Law. This is imperative because, consider this: the Geneva Conventions were ratified back in 1949. That’s a considerable amount of time ago. The first protocol to these conventions wasn’t adopted until 1977.
These legal texts don’t address modern facets like electronic communication because such technology didn’t exist at the time. Back then, telegraphs were the means to communicate with prisoners of war. However, times have changed, rendering the need for a revamp of international humanitarian law undeniable.
It’s essential to define clearly what constitutes military objectives versus civilian infrastructure. Presently, there are no precise criteria. This ambiguity was evident last winter when Russia targeted Ukraine’s energy infrastructure. Putin’s spokesperson, Peskov, claimed these were dual-use facilities, implying military utility for electricity. This assertion is unfounded, but without clear definitions, such ambiguities persist. This ongoing conflict underscores the necessity for significant strides toward more humane regulations.
Interestingly, the Geneva Conventions lack provisions for sanctions. While they’ve been written and ratified, non-compliance by a nation bears no consequences. It’s akin to gentlemen drafting agreements for gentlemen, and if a nation like the Russian Federation chooses not to act as such, there are no repercussions. International humanitarian law requires augmentation with effective monitoring and sanctions mechanisms.
Mykhailo Savva: The process will span nine months before we can file an appeal with the International Court of Justice.
There is partial consent for the reforms, as certain elements are already underway. Constructive discussions have occurred with the Prosecutor General’s Office and the Coordination Headquarters for the Treatment of Prisoners of War. However, the pivotal aspect of appealing against Russia’s violation of the Convention against Torture necessitates the involvement of Ukraine’s top political leadership. The final signature rests with the President of Ukraine, which is pending.
In times of war, the program «Free our relatives» tells the stories of people, cities, villages, and entire regions that have been captured by Russian invaders. We discuss the war crimes committed by the Kremlin and its troops against the Ukrainian people.
The program is hosted by Igor Kotelianets and Anastasia Bagalika.
This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by Ukrainian Helsinki Human Rights Union. Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government. The contents are the responsibility of the authors.
USAID is the world’s premier international development agency and a catalytic actor driving development results. USAID’s work demonstrates American generosity, and promotes a path to recipient self-reliance and resilience, and advances U.S. national security and economic prosperity. USAID has partnered with Ukraine since 1992, providing more than $9 billion in assistance. USAID’s current strategic priorities include strengthening democracy and good governance, promoting economic development and energy security, improving health care systems, and mitigating the effects of the conflict in the east.
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